THE STATE OF WASHINGTON, Appellant, v. RYAN B. ROSE, Respondent.
No. 30907-2-I
Division One
July 18, 1994
75 Wn. App. 28
Review granted at 125 Wn.2d 1014 (1995).
Jessica Ryan of Washington Appellate Defender Association, for respondent.
KENNEDY, J. — In this case the State of Washington asks us to reverse the trial court‘s suppression of evidence seized from the residence of Ryan B. Rose. The State contends the suppression was improper because (1) Rose‘s landlord, Yarton, had authority to consent to the police search of the property, (2) the warrant was valid because it was based on evidence of illegal activity observed in open view, and (3) even excluding evidence from an illegal search, the officer‘s observations still establish probable cause for the search warrant which issued. We reject the State‘s contentions and affirm the trial court‘s order suppressing the illegally obtained evidence.1
FACTS
Rose rented a 5-acre lot from Yarton pursuant to a 6-month written lease. The property contained a mobile home, a large garage and a smaller shed. The access route to the rental
In addition to the written lease, there was an oral agreement wherein Yarton was entitled to use part of the garage for storage. Yarton agreed to perform maintenance on the property, such as mowing the grass and cutting brush. Yarton was not required to give Rose notice before entering the property for these purposes.
On October 28, 1991, Yarton served Rose with an eviction notice and told him to vacate within 30 days. Rose agreed to leave at the end of November. His rent was fully paid for the month of November. On November 18, Yarton came onto the property to store some items. While there he noticed the mobile home was in a state of disrepair. Yarton walked around to assess the condition of the mobile home and outbuildings. Upon approaching the shed he noticed the odor of what he believed to be marijuana.
Yarton reported his suspicion to the police. The report was investigated by Deputy Ty Dekofski of the Snohomish County Sheriff‘s office. Dekofski learned from Yarton that Yarton had access to the property because of the shared storage and the maintenance tasks he performed there. Based on this information, Dekofski concluded that Yarton had the authority to consent to a search of the property.
Yarton and Dekofski drove up to the property and then walked together to the shed, which was found to be locked.
Shortly thereafter two young men pulled up and claimed to be looking for Rose. Dekofski became suspicious when he noticed the men had bolt cutters, and decided to “Mirandize” them. After waiving their rights, the men revealed that they were on the property to steal Rose‘s marijuana growing operation.
Based on his observations while on the property, Dekofski obtained a telephonic search warrant. On serving the warrant, police found a complete growing operation and 14 pounds of marijuana. Rose was charged with possession of marijuana with intent to manufacture or deliver. At a pretrial hearing the trial court suppressed the evidence obtained. The State filed this timely appeal.
DISCUSSION
Landlord‘s Actual Authority To Consent to a Police Search
The State contends that Dekofski was lawfully on the premises because Yarton had actual authority to consent to a search of property. We disagree.
In general, a landlord has no actual authority to consent to a search and seizure on behalf of a tenant where the tenant is in undisputed possession of the property. State v. Christian, 95 Wn.2d 655, 659, 628 P.2d 806 (1981). However,
We find this exception inapplicable. At the time of the search, Rose‘s tenancy had not yet expired. Rose had paid rent through the end of November, and was entitled to possession of the property until that time. Further, on the date of the search Yarton had not notified Rose that he would treat the lease as expired or that he would enter the property for inspection or cleaning purposes.
Landlord‘s Common Authority To Consent to a Search
The State next contends that Yarton‘s common authority over the property gave him authority to consent to a search. We disagree.
“[C]onsent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” United States v. Matlock, 415 U.S. 164, 170, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974).4 The question of common authority is determined by the relationship between the parties:
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock, 415 U.S. at 171 n.7; accord State v. Mathe, 102 Wn.2d 537, 543, 688 P.2d 859 (1984). Where the rights concerning the premises are those incidental to the landlord-tenant relationship, and the tenant is in exclusive posses-
The State argues that Yarton‘s right to unrestricted access when he mowed the grass and performed other maintenance tasks changed the nature of the relationship into something other than that of landlord and tenant. We disagree.
A tenant does not lose his or her expectation of privacy where a landlord is permitted to enter the premises for certain specified reasons. The limited right of entry reserved to a landlord does not translate into a general waiver of constitutional protections by the tenant. See United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988) (tenant‘s agreement that landlord had permission to enter the premises to make certain repairs and mow the lawn did not translate into an unlimited right of access for most purposes); United States v. Impink, 728 F.2d 1228, 1233 (9th Cir. 1984) (landlord‘s reservation of a limited right to enter the garage did not convey an unlimited right of access).
The agreement between Rose and Yarton restricted Yarton‘s right of access to specified tasks in specified areas. We refuse to transform this limited consensual relinquishment of privacy by Rose into a general waiver of his reasonable expectation of privacy. Accordingly, we hold that Yarton may have entered the premises initially for legitimate purposes of storage, maintenance or inspection on November 18, 1991, but that he had no actual authority to consent to a police search on the property.
Landlord‘s Apparent Authority To Consent to a Police Search
Next, the State argues that Dekofski was justified in believing that Yarton had authority to consent to entry by the officer, based on Yarton‘s right to enter the premises without notice to Rose. We disagree.
Apparent authority upholds an officer‘s reasonable belief of common authority to validate an entry whether or not the authority in fact existed. Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148, 161, 110 S. Ct. 2793 (1990).
An officer‘s conclusion that because the landlord was authorized to enter her tenant‘s apartment when necessary to turn off electrical appliances or lights she could consent to a search of his apartment was a misapprehension of the law, and therefore not subject to the application of the apparent authority doctrine. United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992).
Our Supreme Court has warned against expanding the doctrine of apparent authority:
It is fundamental that the doctrine which recognizes the validity of a third party‘s consent to a search must be applied guardedly to prevent erosion of the protection of the Fourth Amendment, since it makes no requirement of the existence of probable cause for the search and does not constitute an exception based on necessity.
State v. Smith, 88 Wn.2d 127, 156, 559 P.2d 970 (Horowitz, J., dissenting) (quoting United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839, 843 (3d Cir. 1970)), cert. denied, 434 U.S. 876, 54 L. Ed. 2d 155, 98 S. Ct. 226 (1977). Similarly, the United States Supreme Court has stated:
Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of “apparent authority.”
Stoner v. California, 376 U.S. 483, 488, 11 L. Ed. 2d 856, 84 S. Ct. 889 (1964).
As in Brown, this case involves a mistake of law, not a reasonable misapprehension of fact. We conclude that Officer Dekofski‘s trip to the locked shed constituted an unlawful search. The locked shed was within the curtilage of the home. The route to the shed was not impliedly open to
The Open View Doctrine
Next, the State contends that the evidence the officer observed inside Rose‘s residence was in open view and thus not subject to any reasonable expectation of privacy. We disagree.
An open view observation occurs:
when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a “search” within the meaning of the Fourth Amendment.
State v. Seagull, 95 Wn.2d at 901 (quoting 1 Wayne R. LaFave, Search and Seizure § 2.2, at 240 (1978)); see also Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (“[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection“). An “open view” observation does not constitute a “search” under either the Fourth Amendment or under the state constitution. Tukwila v. Nalder, 53 Wn. App. 746, 752, 770 P.2d 670 (1989).
It is well established that police officers on “legitimate business”
may enter areas of the curtilage which are impliedly open, such as access routes to the house. In so doing they are free to keep their eyes open. An officer is permitted the same license to intrude as a reasonably respectful citizen. However, a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy.
Consequently, the issue here is whether Dekofski “substantially or unreasonably” departed from the normal access route to the mobile home or employed “a particularly intrusive method of viewing” when he peered into the back window of the home and shone a flashlight into the front window of Rose‘s home. Compare State v. Graffius, 74 Wn. App. 23, 871 P.2d 1115 (1994) (officer‘s intentional observation of marijuana in a partially opened garbage can did not constitute a particularly intrusive method of viewing).
The Seagull court considered several factors to test the intrusiveness of the observation, including whether the officer: (1) spied into the house; (2) acted secretly; (3) approached the house in daylight; (4) used the normal, most direct access route to the house; (5) attempted to talk with the resident; (6) created an artificial vantage point; and (7) made the discovery accidentally. Seagull, 95 Wn.2d at 905.
A consideration of the Seagull factors supports the trial court‘s suppression ruling here. The two most notable factors are Dekofski‘s first going to the shed located some 19 yards in back of the mobile home and then spying into the back and front windows of the home and creating an artificial vantage point by using a flashlight to see into Rose‘s living room.
The State ignores the trip to the shed and argues that no unreasonable intrusion occurred when Dekofski peered into the windows of Rose‘s residence. We disagree, even if it could be said that Dekofski‘s observations as he peered into the interior of the home were untainted by his illegal trip to the locked shed moments earlier.
Officers on legitimate police business who peered through a 6-inch crack between the casing of the window and the drape unreasonably intruded upon the defendant‘s reasonable expectation of privacy in State v. Jordan, 29 Wn. App. 924, 928-29, 631 P.2d 989 (1981). By drawing the curtains the individuals inside the duplex had clearly demonstrated a reasonable expectation of privacy. Jordan, 29 Wn. App. at 927. The fact that the occupants had not completely succeeded in shutting the curtains did not diminish the reasonableness of their expectation of privacy. Jordan, 29 Wn. App. at 927.
Where the evidence of illegal activity could be seen through the front window even without the aid of binoculars from 40 to 50 feet away, visual observation by police did not constitute an unreasonable intrusion. State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306, cert. denied, 423 U.S. 855, 46 L. Ed. 2d 81, 96 S. Ct. 104 (1975).
Although the front window on Rose‘s mobile home was covered with only a ragged curtain, there was nonetheless some attempt to prevent casual observation of the interior of the home. In addition, the mobile home was located at the end of a very long driveway which was connected to a private road, and the search occurred at night. These facts indicate an even greater expectation of privacy by Rose than the tenants involved in Manly and Jordan. We find that Dekofski‘s peering into the windows of Rose‘s residence during the nighttime hours with the aid of a flashlight constituted an unreasonable intrusion into Rose‘s reasonable expectation of privacy.
The State also argues that the use of a flashlight by Dekofski did not create an artificial vantage point. We disagree.
Washington case law indicates that the use of a flashlight in an automobile search is constitutional.5 However, a search
The invalidation of Dekofski‘s search is even more compelling than in Tarantino because of the enormous expectation of privacy with regard to the interior of a personal residence. This is not simply a case wherein the flashlight illuminated what could normally have been seen during the day. Whether we live on a city lot or on acreage in the country, we do not expect that the police will perform exploratory searches in the nighttime hours by peering into the interiors of our homes by the aid of a flashlight. The trial court properly suppressed the evidence obtained in the search of Rose‘s home, in that the search warrant for the home was based on illegally obtained evidence.
The Validity of the Search Warrant Based on Yarton‘s Statement
The State contends that even if the information learned from an illegal search by the police officer is suppressed, the search warrant is not invalid because Yarton‘s statement that he believed he smelled marijuana near the shed was sufficient to establish probable cause for the issuance of the warrant. We disagree.
A search warrant is not rendered totally invalid if the affidavit contains sufficient facts to establish probable cause independent of the illegally obtained information. State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64 (1987). However, we find Yarton‘s suspicion that Rose was engaged in criminal
In Ridgway a tax assessor observed and later took pictures of plants on the defendant‘s property that he believed to be marijuana. The photos were turned over to the sheriffs department when the assessor reported his suspicions. The affidavit for probable cause described the photos and recited that the plants shown in them did appear to have the same shape and color as marijuana. The affidavit also described a police visit to the premises and the deputy‘s observation of the marijuana plants on the steps.
The Ridgway court concluded, without discussion, that the photo and information provided by the tax assessor did not supply probable cause for the warrant. Ridgway, 57 Wn. App. at 918. Later in the opinion the court noted that probable cause to issue a warrant is established by the presentation of facts that would lead a reasonable person to conclude that there is a probability that the defendant is involved in criminal activity, and those facts were lacking.
We believe that the naked assertion by Yarton that he believed he smelled marijuana, without more, would not lead a reasonable person to conclude that Rose was involved in criminal activity. Even such bare assertions by police officers are not sufficient. The police must provide information from which a disinterested magistrate could conclude that, based on the officer‘s training and experience, what the officer believed to be the odor of marijuana probably was marijuana. State v. Remboldt, 64 Wn. App. 505, 510, 827 P.2d 282 (an assertion that marijuana was smelled by an officer must be presented to an issuing magistrate as more than a mere personal belief) (quoting State v. Vonhof, 51 Wn. App. 33, 41, 751 P.2d 1221, review denied, 111 Wn.2d 1010 (1988), cert. denied, 488 U.S. 1008, 102 L. Ed. 2d 782, 109 S. Ct. 790 (1989)), review denied, 119 Wn.2d 1005 (1992). Accordingly, we find the warrant cannot be upheld on Yarton‘s statement alone. The warrant fails entirely.7
BAKER, J., concurs.
AGID, J. (dissenting) — Because the evidence on the table was in open view, Deputy Dekofski viewed it from a lawful vantage point, and his use of a flashlight to see it was not an unwarranted intrusion into Rose‘s privacy, I dissent. I express no view on the majority‘s apparent authority analysis because the marijuana, packaging materials and gram scale observed through the unobscured front window were sufficient to support the warrant and preclude suppression of the evidence at trial.
The majority correctly states the basis of the open view doctrine as set forth in State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981), and the factors the courts are to consider in determining whether an officer has intruded on a constitutionally protected expectation of privacy by exceeding the scope of his or her implied invitation to come on to the portions of the property open to the public. Majority, at 36-37. However, I cannot agree with its conclusion that: “Dekofski‘s peering into the windows of Rose‘s residence during the nighttime hours with the aid of a flashlight constituted an unreasonable intrusion into Rose‘s reasonable expectation of privacy.”8 Majority, at 38.
Thus, I conclude that the majority‘s real quarrel here is with Deputy Dekofski‘s use of a flashlight to enhance his
align[ed] ourselves with the almost universal view, that [the] use of a flashlight is not a search at all.
When the circumstances of a particular case are such that the police officer‘s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search.
State v. Young, 28 Wn. App. 412, 417, 624 P.2d 725 (quoting Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970)), review denied, 95 Wn.2d 1024 (1981); accord State v. Cagle, 5 Wn. App. 644, 646, 490 P.2d 123 (relying on Marshall v. United States, supra, for the proposition that “[t]he mere use of a flashlight, however, does not magically transmute a non-accusatory visual encounter into a Fourth Amendment search“), review denied, 80 Wn.2d 1003 (1971); see also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983); State v. Regan, 76 Wn.2d 331, 336-37, 457 P.2d 1016 (1969).
Both the Supreme Court and this court have also held that the use of binoculars, another artificial means of enhancing an officer‘s view of what he or she would otherwise be able to see from a lawful vantage point, does not constitute a search. State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306 (marijuana plants in a dormitory window observed from the street; officer used binoculars to confirm a report the plants were marijuana), cert. denied, 423 U.S. 855 (1975);10 State v. Jones, 33 Wn. App. 275, 277, 653 P.2d 1369 (1982) (binoculars used to observe defendant inhaling cocaine in a car), review denied, 99 Wn.2d 1003 (1983). I fail to see any distinction between the use of binoculars in Manly, which also involved a residence, and the use of a flashlight in this case.
The majority relies on a North Carolina case, State v. Tarantino, 322 N.C. 386, 368 S.E.2d 588 (1988), cert. denied, 489 U.S. 1010 (1989), and the “enormous expectation of privacy with regard to the interior of a personal residence” for its conclusion that Deputy Dekofski exceeded the scope of his implied invitation under the open view doctrine. Majority, at 39. It rejects the rationale of People v. Wheeler, 28 Cal. App. 3d 1065, 105 Cal. Rptr. 56 (1972) (shining flashlight through garage door to observe a stereo cabinet reported stolen by witness to burglary is not a search) and United States v. Wright, 449 F.2d 1355 (D.C. Cir. 1971) (shining flashlight into 9-inch gap between locked garage doors to see stolen car parts not a search), cert. denied, 405 U.S. 947 (1972), presumably because those cases involved garages rather than residences. Tarantino, however, also involved an outbuilding, a storage shed, and facts that do not remotely resemble the facts in this case. In Tarantino, the officer received no response to his initial knocks on the front door. He then “climbed the hill to the second-story porch, using a flashlight to guide his way along a little-used path“. 322 N.C. at 388. He again knocked and, receiving no response, peered though cracks that “were no more than one-quarter of an inch wide” after “maneuvering his body and shining his flashlight through” them. 322 N.C. at 388. This is a far cry from shining a flashlight into an uncovered window through which the deputy in this case could see from his lawful vantage point on the front porch of Rose‘s residence.
While I agree that we recognize a heightened degree of privacy in a residence, Fourth Amendment protection also extends to the surrounding curtilage of a residence. The curtilage encompasses property in proximity to a dwelling,
Finally, I do not find the majority‘s emphasis on the fact that the events took place at night persuasive or dispositive of the issue in the case. Majority, at 38-39. Presumably, the majority emphasizes this point to distinguish the events here from the daylight view of the greenhouse approved in Seagull. In Seagull, the court noted a number of circumstances relevant to its conclusion that the officer in that case had not intruded on a constitutionally protected expectation of privacy. 95 Wn.2d at 905. Among those factors, the court observed that “all acts occurred during daylight hours“. 95 Wn.2d at 905.
While I agree that the time of day or night may be relevant in determining whether an officer has acted as “a reasonably respectful citizen“, 95 Wn.2d at 902, and, thus, not exceeded the scope of his or her implied invitation to enter private property, it is apparent from the opinion in Seagull that none of the circumstances the court relied on to uphold that particular warrant is critical to its conclusion. Rather, it emphasized several times that each case requires a fact-specific inquiry, and no set of circumstances is determinative. The court observed:
The presence of an officer within the curtilage of a residence does not automatically amount to an unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case just how private the particular observation point actually was.
The affidavit in support of the search warrant indicates that Deputy Dekofski was “summoned to” the landlord‘s house “[o]n 11/18/91 at approximately 1800 hours“. The search warrant was issued a little over 3 hours later, sometime between 9 and 9:22 p.m. Nothing in the record indicates exactly when the deputy went on to the front porch, but it was not unusually late in the evening. Since he was able to see the water and power lines going to the shed, it could not have been too long after dusk. Had the officer used a flashlight to look in the window in the middle of the night when no one would be expecting visitors, we might have a different case because that might exceed the “license to intrude” afforded a “reasonably respectful citizen“. Seagull, 95 Wn.2d at 902. However, it is certainly not unusual to have visitors between 6 and 9 p.m. Thus, the majority‘s analysis must rest on Deputy Dekofski‘s use of a flashlight.
I cannot agree with the majority‘s conclusions that, standing alone, the use of a flashlight from a lawful vantage point constitutes “a particularly intrusive method of viewing“, Seagull, 95 Wn.2d at 903, in light of the fact that the use of binoculars has been approved in other cases.
Furthermore, no case either the majority or I have found has held on facts even remotely similar to these that using a flashlight to “pierce the nighttime darkness” under circumstances where there would be no legitimate expectation of privacy during the daylight hours takes an officer‘s actions
Review granted at 125 Wn.2d 1015 (1995).
Notes
[i]t would be unreasonable to require, in every case, that police officers walk a tightrope while on private property engaging in legitimate police business. Absent such a requirement, we cannot say the limited deviation, within the open area, that occurred in this case was so unreasonable as to be an intrusion upon a privacy expectation deserving of Fourth Amendment protection under Katz v. United States, [389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)].Seagull, 95 Wn.2d at 905.